Subhashish Das vs The State Of Assam And 5 Ors
2022 Latest Caselaw 2941 Gua

                                                                  Page No.# 1/8

GAHC010137732021




                       THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : WP(C)/4547/2021

         SUBHASHISH DAS
         S/O- SHRI SANAT KUMAR DAS, R/O- H.NO. 22, BHASKAR NAGAR, B R
         PATH, BYE LANE NO.1, P.O. VINOBHANAGAR, P.S. FATASHIL AMBARI,
         DIST.- KAMRUP (M), ASSAM, PI- 781018, PH. NO. 9435276562



         VERSUS

         THE STATE OF ASSAM AND 5 ORS
         REP. BY THE COMM. AND SECY. TO THE GOVT. OF ASSAM, LABOUR
         WELFARE DEPTT., BLOCK-D, 3RD FLOOR, ASSAM SECRETARIAT, DISPUR,
         GHY-6, DIST.- KAMRUP (M), ASSAM

         2:THE ADMINISTRATIVE MEDICAL OFFICER
          ESI SCHEME
         ASSAM
          JAWAHARNAGAR
          KHANAPARA
          P.O. AND P.S. KHANAPARA
          GHY-22
          DIST.- KAMRUP (M)
         ASSAM

         3:THE CHAIRMAN
          SELECTION COMMITTEE FOR GRADE-IV AND PEON UNDER THE ESI
         SCHEME
          O/O- ADMINISTRATIVE MEDICAL OFFICER
         ASSAM
          P.O. AND P.S. KHANAPARA
          GHY-22
          DIST.- KAMRUP (M)
         ASSAM
                                                                  Page No.# 2/8

            4:THE MEMBER SECRETARY
             SELECTION COMMITTEE FOR GRADE-IV AND PEON UNDER THE ESI
            SCHEME
            ASSAM
             P.O. AND P.S. KHANAPARA
             KHAHNAPARA
             GHY-22
             DIST.- KAMRUP (M)
            ASSAM

            5:THE SELECTION COMMITTEE
             REP. BY THE CHAIRMAN
             O/O- ADMINISTRATIVE MEDICAL OFFICER
            ASSAM
             P.O. AND P.S. KHANAPARA
             GHY-22
             DIST.- KAMRUP (M)
            ASSAM

            6:SHRI SATYABRATA DAS
             C/O- THE ADMINISTRATIVE MEDICAL OFFICER
            ASSAM
             ESI SCHEME
            ASSAM
             JAWAHARNAGAR
             KHANAPARA
             P.O. AND P.S. KHANAPARA
             GHY-22
             DIST.- KAMRUP (M)
            ASSA

Advocate for the Petitioner    : MR K PUJARI

Advocate for the Respondent : GA, ASSAM

BEFORE HONOURABLE MR. JUSTICE MICHAEL ZOTHANKHUMA

Date of hearing : 11.08.2022 Date of Judgment : 12.08.2022 Page No.# 3/8

JUDGMENT AND ORDER

Heard Mr. M. Bhagabati, learned counsel for the petitioner. Also heard Mr. H.N. Sarma, learned counsel for the respondent Nos. 2 & 4, Mr. D. Das, learned Senior Counsel assisted by Mr. K. Mohammed, learned counsel for the respondent No. 6 and Mr. J.K. Goswami, learned counsel for the respondent No. 1.

2. The petitioner is aggrieved with the wrong evaluation of his answers by the respondent Nos. 2 & 4 in relation to the written test conducted for the 14 posts of Grade - IV (Peon & Sweeper), in pursuant to an Advertisement 13.01.2021, issued by the respondent No. 2. The petitioner who belongs to the Scheduled Caste category had taken part in the selection process, as 1 out of the 14 vacant posts had been reserved for the Scheduled Caste category. The petitioner's grievance is that though the petitioner had rightly answered Question Nos. 7, 13 & 19, the examiner had declared the answers of the petitioner as wrong and had not awarded marks for the said answers.

3. The petitioner's counsel submits that the petitioner who secured 38 marks, would have secured 44 marks if he had been given marks for his answers in relation to Question Nos. 7, 13 & 19, as compared to the successful candidate (respondent No. 6) who secured 42 marks.

4. Mr. H.N. Sarma, learned counsel for the respondent Nos. 2 & 4 has produced the original answer sheets of the petitioner and the respondent No. 6. Question Nos. 7, 13 & 19 are reproduced below:-

"Question No. 7 - Who was the first Prime Minister of Assam?

      Options:     (a) Gopinath Bordoloi

                    (b) Zakir Hussain

                    (c) Padma Nath Gohain Barua
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                     (d) None of the above

Question No. 13 - Which National Award to former Chief Minister of Assam Late Tarun Gogoi was awarded?

          Options:       (a) Padmashree

                     (b) Padma Bushan

                     (c) Padma Bibhusan

                     (d) None of the above

Question No. 19 - Which of the following is the largest Human Organ?

          Options:       (a) Kidney

                     (b) Liver

                     (c) Brain

                     (d) Skin"

5. The instructions to the candidates as provided in the question paper (booklet) states that candidates have to put tick mark in the right option only and that double tick or overwriting will be treated as a wrong answer.

6. In respect to Question No. 7, the petitioner had given a tick mark against 7 (d), which states "None of the above". However, against the said 7 (d), the petitioner had written the name of the first Prime Minister of Assam i.e., "Syed Sadullah". In respect of Question No. 13, the petitioner had given a tick mark against 13 (b) "Padma Bhusan". In respect of Question No. 19, there are 2 tick marks over 19 (b) and 19 (d), though the tick mark over 19 (d) was subsequently overwritten.

7. The question paper (booklet) of the respondent No. 6 shows that he has given a tick mark in respect of Question No. 7 by ticking the answer 7 (a), for which he has been awarded 2 marks. The respondent No. 6 has ticked answer 13 (b), for which he Page No.# 5/8

has been given zero marks. The respondent No. 6 has ticked answer 19 (d), for which he has been given 2 marks.

8. The learned counsels for the parties submit that the correct answer to Question No. 7 is 7 (d). The correct answer to Question No. 13 is 13 (b) and the correct answer for Question No. 19 is 19 (d).

9. On perusing the marks awarded to the petitioner and the respondent No. 6, it is clear that the petitioner and the respondent No. 6 had both been given zero marks, though they had both answered Question No. 13 by ticking 13 (b). In respect of Question No. 19, the respondent No. 6 ticked the correct answer i.e., 19 (d). The petitioner on the other hand ticked both 19 (b) and 19 (d), which was in violation of the instructions given to candidates. Thus, this Court is of the view that there was no infirmity with the decision of the examiner, who awarded zero marks to the petitioner for ticking both 19 (b) and 19 (d). On the other hand, the respondent No. 6 was given 2 marks for his answer to Question No. 19. The respondent No. 6 was however given 2 marks for Question No. 7, though he had ticked the wrong answer i.e., 7 (a). The petitioner had however ticked the correct answer 7 (d). However, the petitioner was not given any marks for the same.

10. In the normal scheme of things, the petitioner would have been awarded 2 marks for his answer to Question No. 7 and the respondent No. 6 should not have been awarded any marks for his answer to Question No. 7. In that eventuality, the petitioner and the respondent No. 6 would have got the same marks i.e., 40 marks each.

11. The question that would have to be decided is as to whether marks can be given to any candidate, who had given answers in conformity with the answer key, which was not the correct answer. This issue would have to be decided in relation to the answer key to Question No. 7. The further question is whether the petitioner had violated the instructions given to the candidates in the question paper booklet, which states that candidates have to put tick mark in the right option only and that double Page No.# 6/8

tick or overwriting will be treated as a wrong answer.

12. In paragraph 4 of the affidavit-in-opposition filed by the respondent Nos. 2 & 4, the following has been stated:-

"It is stated herein that the Answer Key which was found available in the official file has not bearing any signature of any officials but the evolution has been made on the basis of said Answer Key. However, in the answer key bearing Question No. 7, the answer is being prepared as Option A is the correct answer but the actual and correct answer is Option D."

13. In the case of Rajesh Kumar & Ors. Vs. State of Bihar & Ors., reported in (2013) 4 SCC 690, the Apex Court had directed the respondents to reevaluate the answer scripts of candidates on the basis of the correct answer key. However, in the case of Ran Vijay Singh & Ors. Vs. State of Uttar Pradesh & Ors. reported in (2018) 2 SCC 357, the Apex Court, after considering various other judgments of the Apex Court, relating to reevaluation of answer scripts, highlighted a few significant conclusions in paragraph No. 30, which are as follows:-

"30. The law on the subject is therefore, quite clear and we only propose to highlight a few significant conclusions. They are:

30.1 If a statute, Rule or Regulation governing an examination permits the re-evaluation of an answer sheet or scrutiny of an answer sheet as a matter of right, then the authority conducting the examination may permit it.

30.2 If a statute, Rule or Regulation governing an examination does not permit re-evaluation or scrutiny of an answer sheet (as distinct from prohibiting it) then the Court may permit re-evaluation or scrutiny only if it is demonstrated very clearly, without any "inferential process of reasoning or by a process of rationalisation" and only in rare or exceptional cases that a material error has been committed.

30.3 The Court should not at all re-evaluate or scrutinize the answer sheets of a candidate - it has no expertise in the matter and academic matters are best left to academics.

30.4 The Court should presume the correctness of the key answers and proceed on that assumption and Page No.# 7/8

30.5 In the event of a doubt, the benefit should go to the examination authority rather than to the candidate."

14. Further, the Apex Court in the above case of Ran Vijay Singh & Ors. (supra) also held that in respect of the wrong answer keys, the way out of the impasse is to exclude the suspect or the offending question. The relevant paragraph No. 31 in Ran Vijay Singh & Ors. (supra) is reproduced below:

"31. On our part we may add that sympathy or compassion does not play any role in the matter of directing or not directing re-evaluation of an answer sheet. If an error is committed by the examination authority, the complete body of candidates suffers. The entire examination process does not deserve to be derailed only because some candidates are disappointed or dissatisfied or perceive some injustice having been caused to them by an erroneous question or an erroneous answer. All candidates suffer equally, though some might suffer more but that cannot be helped since mathematical precision is not always possible. This Court has shown one way out of an impasse - exclude the suspect or offending question."

15. As can be seen from the discussion made in the foregoing paragraphs, the answer key to Question No. 7 was not the correct answer. The issue is with regard to whether marks should be awarded to those persons who have answered the question correctly, but which is not in conformity with the answer key. In the case of Rajesh Kumar & Ors. (supra), the Apex Court had directed re-evaluation of answer scripts of the candidates on the basis of the correct answer key. In the case of Saumitra Ginodia vs. Union of India & Ors., reported in 2017 0 Supreme (All) 1143, the Division Bench of the Allahabad High Court had directed that it was the duty of the Central Board of Secondary Education (CBSE) to award marks on the basis of the correct answer key as one wrong answer could alter the fate of many candidates. The Allahabad High Court held that the mistake committed by the CBSE has to be rectified and consequently, the relevant claim by the petitioner therein should not be confined to the petitioner alone, but to all the candidates who appeared in the examination. The High Court thus directed the CBSE to give appropriate marks to all the candidates in the like manner for the suspect/offending question.

However, in the case of Ran Vijay Singh & Ors. (supra), the Apex Court has Page No.# 8/8

held that the law on the subject is quite clear that if a statute, rule or regulation governing an examination permits the re-evaluation of an answer sheet, then the authority conducting the examination may permit it. In the present case, the petitioner has not been able to show that there is a statute, rule or regulation allowing re- evaluation of answer scripts in this case and the petitioner has also not prayed for re- evaluation. In view of the admitted fact that the answer key to question No. 7 is the wrong answer, this Court, by following the law laid down in Ran Vijay Singh & Ors. (supra), holds that the said Question No. 7 would have to be taken out from reckoning and no marks should be allotted to any person in respect of Question No. 7.

16. The above being said, the instructions to candidates states that each objective type question has 4 alternative answers and that candidates were to put tick marks in the right options only. Double tick or overwriting would be treated as a wrong answer. In respect of question No. 7, the petitioner had given a tick mark against 7 (d), which states "None of the above". However, against the said 7 (d), the petitioner had written the name of the first Prime Minister of Assam, i.e., "Syed Sadullah". The Apex Court in the case of State of Tamil Nadu & Ors. Vs. G. Hemalathaa & Anr. reported in (2020) 19 SCC 430, did not approve of the judgment of the High Court, which had favoured the candidate who violated mandatory instruction given to candidates, by underlining the answer sheet with pencil at several places. As such, by following the law laid down by the Apex Court in State of Tamil Nadu & Ors. Vs. G. Hemalathaa & Anr. (supra), this Court also finds that the petitioner had violated the instruction given to candidates, wherein the candidates were to only tick the correct answer and they were not to make any double tick or overwriting in the answer sheet.

17. The writ petition is accordingly disposed of in terms of the observations and directions indicated above.

JUDGE

Comparing Assistant